STATE OF NORTH CAROLINA
v
.
Cumberland County
No. 97 CRS 37393
WILLIE JAMES BOOKER,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
HUDSON, Judge.
On 1 December 1997, the Cumberland County Grand Jury indicted
defendant for second degree murder. Defendant's case was called
for trial on 11 May 1998 in the superior court before Judge Robert
F. Floyd, Jr. On 12 May 1998, after a jury was impaneled,
defendant entered a plea of guilty as charged. Under the terms of
the plea agreement, the defendant and the State agreed to leave
sentencing to the discretion of the court.
At the sentencing hearing, Judge Floyd determined that
defendant's prior record points made him a Level IV, and found two
mitigating factors and no aggravating factors. He then imposed a
sentence in the mitigated range, with a minimum term of 151 months
and a maximum term of 191 months in the custody of the Departmentof Corrections.
On 5 February 2001, defendant pro se filed a Motion for
Appropriate Relief in the superior court in Cumberland County. By
order 2 July 2001, Judge Jack A. Thompson determined that
defendant's trial counsel failed to advise defendant that he had
the right to appeal the calculation of his prior record level.
Judge Thompson appointed counsel to file a petition with this Court
for defendant solely on that issue. Judge Thompson denied and
dismissed the remaining claims contained in defendant's Motion for
Appropriate Relief.
On 8 February 2002, defendant filed a “Petition for Writ of
Certiorari to the Superior Court of Cumberland County” with this
Court requesting review of the judgment and commitment entered in
this case. By order 22 February 2002, we allowed the petition for
the purpose of reviewing the prior record level calculation, and
remanded the case for the superior court to determine whether
defendant was entitled (1) to the appointment of counsel; (2) to
proceed as an indigent; (3) to a copy of the transcript at the
State's expense; and (4) to be released on bond pending appeal, and
then for the appeal to proceed, being deemed taken as of the date
of the trial court's determination.
On 10 March 2002, the trial court ruled that defendant was
entitled to the appointment of counsel, to proceed as an indigent
and to have a copy of the transcript prepared at the State's
expense. The trial court denied defendant release on bond pending
appeal. The record on appeal was docketed 29 May 2002. Defendant's sole assignment of error is that the trial court
erred in its calculation of defendant's prior record level.
Defendant contends that there was insufficient evidence of his out-
of-state convictions to find that his prior record level was IV.
For the following reasons, we affirm the trial court.
Pursuant to G.S. . 15A-1340.14, prior convictions shall be
proved by any of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of
the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the Division
of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be
reliable.
G.S. . 15A-1340.14(f) (1998 Cum. Supp.). Under this section, the
“State bears the burden of proving, by a preponderance of the
evidence, that a prior conviction exists and that the offender
before the court is the same person as the offender named in the
prior conviction.” Id. Moreover, “[t]he original or a copy of the
court records . . . is prima facie evidence that the offender named
is the same person as the offender before the court, and that the
facts set out in the record are true.” Id.
In State v. Hamby, a case factually similar to one here, this
Court noted that the defendant, in her plea agreement
admitted that her prior record level was II,
that punishment for the offense could be
either intermediate or active in the trial
court's discretion and that the trial courtwas authorized to sentence her to a maximum of
forty-four months in prison. By these
admissions, defendant mooted the issues of
whether her prior record level was correctly
determined, whether the type of sentence
disposition was authorized and whether the
duration of her prison sentence was
authorized. Therefore, defendant could not
have raised any of the issues enumerated in
N.C. Gen. Stat. § 15A-1444(a2) (Cum. Supp.
1996) in her appeal. Because defendant could
not have raised those issues, she had no right
to appeal in this case.
129 N.C. App. 366, 369-70, 499 S.E.2d 195, 197 (1998). Based upon
that stipulation as to her prior record level, this Court dismissed
her appeal.
More recently, in State v. Eubanks, this Court reviewed the
following exchange that occurred between the prosecutor, defense
counsel, and the trial court:
THE COURT: Evidence for the State?
[THE PROSECUTOR]: If Your Honor please, under the
Structured Sentencing Act of North Carolina, the
defendant has a prior record level of four in this case,
Your Honor.
THE COURT: Do you have a prior record level worksheet?
[THE PROSECUTOR]: Yes, sir, I do.
THE COURT: All right. Have you seen that, Mr. Prelipp
[attorney for defendant]?
MR. PRELIPP: I have, sir.
THE COURT: Any objections to that?
MR. PRELIPP: No, sir.
151 N.C. App. 499, 504-05, 565 S.E.2d 738, 742 (2002). The Court
noted that “[t]here is no question that a worksheet, prepared and
submitted by the State, purporting to list a defendant's priorconvictions is, without more, insufficient to satisfy the State's
burden in establishing proof of prior convictions.” Id. at 505,
565 S.E.2d at 742. The Court, in finding no error in defendant's
sentencing, held that “this colloquy might reasonably be construed
as an admission by defendant that he had been convicted of the
other charges appearing on the prosecutor's worksheet.” Id. at
506, 565 S.E.2d at 743 (citations and quotation marks omitted).
Here, at the sentencing hearing, the court asked whether the
State wished to present any evidence, at which point the following
exchange occurred:
[PROSECUTOR]: As to the actual prior record level, it
appears the defendant has nine prior points. I have
previously handed the record certified -- or photocopies
of the certified records to counsel, and if I may hand
them to the Court at this time so the Court can see them.
I have them marked as State's Exhibit Numbers 1, 2, 3, 4
and 5. State's 1 is a -- supports the burglary charge,
the unlawful weapons charge and the mob action charge
which is contained on the worksheet and the remaining
exhibits are damage to real property, all of these coming
out of Illinois; a battery charge, which is consistent
with assault on a female here; violation of protection
order, which are analogous to violations of Chapter 50B
convictions here; violation of order of protection and
domestic battery, again like assault on a female.
THE COURT: Any objection to the Court receiving State's
Exhibits 1 through 5?
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: The Court will receive those items into
evidence for purposes of sentencing. Defense counsel had
an opportunity to review the worksheet that has been
handed up?
[DEFENSE COUNSEL]: I have.
THE COURT: You in agreement with the information
contained thereon?
[DEFENSE COUNSEL]: I am.
Here, as in Eubanks, we believe that “this colloquy might
reasonably be construed as an admission by defendant that he had
been convicted of the other charges appearing on the prosecutor's
worksheet.” Eubanks, 151 N.C. App. at 506, 565 S.E.2d at 743.
Assuming arguendo that defense counsel's acknowledgment of the
contents of State's exhibits one through five do not constitute a
stipulation, we note that the State submitted into evidence more
than a mere worksheet listing defendant's prior convictions.
State's exhibits one through five were, in fact, copies of
defendant's out-of-state convictions and were in accordance with
the provisions of G.S. .. 15A-1340.14(e) & (f).
Affirmed.
Judges MCGEE and STEELMAN concur.
Report per Rule 30(e).
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